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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Nashua District Court

No. 2000-453

THE STATE OF NEW HAMPSHIRE

v.

JASON K. GAFFNEY

Argued: November 14, 2001

Opinion Issued: April 12, 2002

Philip T. McLaughlin, attorney general (Ann M. Rice, senior assistant
attorney general, on the brief and orally), for the State.

Lawson & Weitzen, LLP, of Boston, Massachusetts (Robert J. Roughsedge
on the brief and orally), for the defendant.

NADEAU, J. The defendant, Jason K. Gaffney, was convicted in Nashua District Court (Gormley,
J.) of one count of disorderly conduct, see RSA 644:2, III(a) (1996), and one count
of criminal trespass, see RSA 635:2, II(b)(2) (1996). The defendant appeals both
convictions. We remand.

The record supports the following facts. Officer Kevin Girouard of the Nashua Police
Department and his partner conducted a traffic stop of an automobile driven by the
defendants fiancée. The defendant was riding in the front passenger seat of the
automobile. As Officer Girouard neared the completion of his discussion with the driver,
the defendant questioned the reasons for the traffic stop and stated that Officer Girouard
had no right to stop them. After returning the drivers license and registration,
Officer Girouard suggested to her that the defendants attitude could result in her
receiving a ticket in a future traffic stop. This prompted the defendant to taunt Officer
Girouard to give him a ticket, adding that he knew the law and would see the officer in
court. In response, Officer Girouard commented to the defendant, an African-American,
"Who do you think you are, Johnny Cochran?" The defendant repeatedly told
Officer Girouard to return to his cruiser, and indicated that he was going to file a
complaint against him.

The defendant and his fiancée proceeded to the Nashua Police Department, where the
defendant indicated he wanted to file a complaint against a police officer. He was
immediately referred to Sergeant Jamie Provencher, the station supervisor on duty, who met
the couple and escorted them to his office. There the defendant explained the situation,
including his perception of Officer Girouards comment as racially motivated and thus
a violation of his civil rights. Sergeant Provencher began to ask a series of questions
concerning the defendants account of the incident, but the defendant was reluctant
to answer. The defendant insisted that it was improper for Sergeant Provencher to inquire
about the attendant circumstances of the incident and that he was instead required to
simply record the complaint.

In the ensuing few minutes, the defendant became increasingly belligerent and loud in
his insistence that he be provided with a written statement indicating that Sergeant
Provencher would not allow him to make his complaint. Sergeant Provencher repeatedly
warned the defendant that if he did not quiet down, he would have to leave the police
station, and that he would be arrested if he did not leave. When the defendant continued
his tirade, Sergeant Provencher ordered him to leave the police station. The defendant
refused to leave, stating that he would not leave until his complaint was taken, and that
he would go to the State police if that were not done. The defendants yelling and
screaming in Sergeant Provenchers office attracted the attention of several other
police officers in the station, one of whom also ordered Gaffney to leave. Sergeant
Provencher continued to order the defendant to leave the police station. With his hand on
Gaffneys elbow, Sergeant Provencher escorted the defendant from his office and the
police station lobby to the outside door; all the while Gaffney continued yelling and
refused to leave. Gail VanKeuren, a citizen, was near the station lobby and witnessed the
incident. At the outside door, Sergeant Provencher released the defendants elbow and
turned to return to his office. Gaffney, however, refused to leave, and continued to yell.
Faced with the defendants actions, and concerned for the people in the police
station lobby, Sergeant Provencher placed the defendant under arrest.

On appeal, the defendant argues that his convictions should be reversed because: (1)
the actions of the Nashua Police Department violated his rights to freedom of speech and
to petition the government for the redress of wrongs, as provided for by both the State
and Federal Constitutions; (2) both RSA 644:2 (disorderly conduct) and RSA 635:2 (criminal
trespass) are unconstitutionally overbroad and vague; (3) the evidence was insufficient to
find him guilty beyond a reasonable doubt on either charge; (4) the trial court erred in
denying him the opportunity to obtain discoverymaterials, which he intended
to use to support a claim that RSA 644:2 and RSA 635:2 were not applied uniformly; and (5)
the defendants right to due process was denied because the State failed to produce
certain potentially exculpatory documents.

The defendant first argues that because his right to file a complaint with the Nashua
Police Department was protected by both the free expression provisions of the State
Constitution and the First Amendment to the Federal Constitution, Sergeant
Provenchers order to leave the police station was unlawful. The defendant maintains
that because his purpose was legitimate, his conviction for disorderly conduct was
improper. Similarly, the defendant argues that because he was licensed and privileged to
enter and remain on the subject premises, his conviction for criminal trespass was also
untenable. We will not engage in this constitutional analysis, however, as the defendant
failed to preserve the argument below. SeeState v. Cole, 142 N.H. 519, 521
(1997).

The defendant next argues that RSA 644:2 and RSA 635:2 are unconstitutionally overbroad
and vague because they allow the police unfettered discretion in their application,
thereby violating Part I, Articles 22 and 32 of the State Constitution and the First
Amendment to the Federal Constitution. We will not engage in a constitutional analysis of
the overbreadth claim as the defendant failed to preserve that argument below. Seeid.

We note that the defendant blurs the distinction between the constitutional doctrines
of overbreadth and vagueness. On appeal, the defendant argues that the disorderly conduct
and criminal trespass statutes are vague, thereby violating the free speech provisions of
the State and Federal Constitutions. This is patently incorrect. The vagueness doctrine
rests upon the Due Process Clauses of the Fifth and Fourteenth Amendments and applies
solely to legislation which is lacking in clarity and precision. SeeState v.
Pike, 128 N.H. 447, 451 (1986). However, a review of the motion for a directed verdict
and supporting oral argument reveals that the defendant failed to preserve a vagueness
claim under either the State or Federal Constitutions. Although the defendant made
reference to vagueness below, he failed to specify which constitutional provisions were
allegedly being violated, and he neglected to state whether his claims were founded upon
State or federal grounds. SeeState v. Stratton, 132 N.H. 451, 456 (1989).
Because the defendant failed to articulate a specific constitutional provision, we will
not perform either a State or federal constitutional analysis. Seeid.; State
v. Dellorfano, 128 N.H. 628, 632 (1986); State v. Westover, 127 N.H. 130, 131
(1985).

The defendant next argues that there was insufficient evidence to find him guilty of
either disorderly conduct or criminal trespass. In order to prevail on a challenge to the
sufficiency of the evidence, a defendant must demonstrate that no rational trier of fact,
evaluating all of the evidence and reasonable inferences therefrom in the light most
favorable to the State, could conclude beyond a reasonable doubt that the defendant
committed the charged crime. SeeState v. Zeta Chi Fraternity, 142 N.H. 16,
20, cert. denied, 522 U.S. 558 (1997). The disorderly conduct statute
states, in pertinent part:

A person is guilty of disorderly conduct if:

III. He purposely causes a breach of the peace, public inconvenience, annoyance or
alarm, or recklessly creates a risk thereof, by:

(a) Making loud or unreasonable noises in a public place . . . which noises would
disturb a person of average sensibilities . . . .

RSA 644:2, III(a).

In State v. Murray, 135 N.H. 369, 372 (1992), we held that someone other than
the arresting officer must be disturbed for there to be a public disturbance within the
meaning of RSA 644:2, III(a). Gail VanKeuren, a civilian, was in the police station
attending to private business during the incident. Ms. VanKeuren testified during trial
that she was "stunned" and a "little shocked" because the defendant
was "loud, and vocal, verbal and what [she] considered to be disrespectful of the
police officers." Three police officers in the station supported Ms. VanKeurens
account, testifying that the defendant was so loud and irate that they each inquired if
Sergeant Provencher needed assistance. Even though the officers cannot be the subjects of
disorderly conduct, they may be witnesses to support civilian testimony. Given that these
witnesses were unanimous in their testimony, a rational trier of fact, evaluating all of
the evidence and reasonable inferences therefrom in the light most favorable to the State,
could conclude beyond a reasonable doubt that the defendant was guilty of disorderly
conduct.

We next evaluate the sufficiency of the evidence upon which the defendant was convicted
of criminal trespass. See RSA 635:2. A person is guilty of criminal trespass under
these circumstances if

(b) [he] knowingly enters or remains:

(2) In any place in defiance of an order to leave or not to enter which was personally
communicated to him by the owner or other authorized person . . . .

RSA 635:2, II(b). There is no dispute that the defendant was entitled to enter the
police department to file a complaint. Rather, the defendants conviction stems
entirely from his unwillingness to leave. Once the conversation between the defendant and
Sergeant Provencher became contentious, the defendant was repeatedly ordered to leave the
police station. The defendant refused to leave until his complaint was taken. Eventually,
the defendant had to be escorted from Sergeant Provenchers office and to the front
door by several police officers. While the defendant was being escorted to the door, he
continued to exclaim that he would not leave.

The defendant argues that the State is unable to prove that he knew he was neither
licensed nor privileged to remain on the property. As noted earlier, the defendant failed
to preserve the constitutional component of this argument. In State v. Dupuy,
118 N.H. 848 (1978), we considered whether a person, once invited onto a premises, can
still be found guilty of criminal trespass. In affirming the decision, we determined that,
even assuming a defendant was legitimately invited onto a premises, that fact did not
preclude the charge that she knew she was not licensed or privileged to remain on the
property. Seeid. at 851-52. As in Dupuy, it is clear in the present
case that the defendant received sufficient warning and instruction to quit the premises
prior to being arrested. Given the repeated orders by individuals in actual or apparent
authority to leave the police station, and the defendants refusal to do so, the
evidence was sufficient to support his conviction for criminal trespass.

This incident began when the defendant made intemperate and unnecessary comments to the
police officer while at the scene of the original stop. The officer responded with equally
intemperate and wholly unnecessary remarks which resulted in the defendant going to the
Nashua Police Station to file a complaint. Law enforcement officers are entitled to
perform their duties without hostile challenges from members of the public. Officers of
the law, on the other hand, are expected to act with civility even in the face of
incivility. SeeState v. Briggs, 147 N.H. ____ (decided February 11, 2002).
The absence of that civility, however, does not change the fact that the evidence in this
case was sufficient to convict the defendant beyond a reasonable doubt.

The defendant next argues that the trial court erred when it denied him the opportunity
to obtain discovery related to possible racial discrimination or profiling practiced by
the Nashua Police Department. The defendant suggests that the discovery of these materials
could be critical in demonstrating that the statutes in question were not uniformly
applied. In particular, the defendant requested documents or reports concerning any
investigation or review of the Nashua Police Department for racial discrimination or
profiling, any documents concerning complaints or investigations of racial discrimination
or profiling by any member of the department, and an in camera review of the
personnel and disciplinary records of Officer Girouard and Sergeant Provencher. The trial
court issued a written order denying the defendants discovery requests.

We review the trial courts decisions on the management of discovery and
admissibility of evidence for an unsustainable exercise of discretion. SeeState
v. Johnson, 144 N.H. 175, 180 (1999); seealsoState v. Lambert,
147 N.H. ___, ___, 787 A.2d 175, 177 (2001). To demonstrate an unsustainable exercise of
discretion, the defendant must show that the trial courts rulings were clearly
untenable or unreasonable to the prejudice of his case. SeeJohnson, 144
N.H. at 181. In denying the defendants request for information concerning racial
profiling and discrimination by the Nashua Police Department and its officers, the trial
court held, given the context of the pending charges, that such a request was overbroad
and unlikely to lead to relevant information. We agree. In United States v. Armstrong,
517 U.S. 456, 468 (1996), the Court required "some evidence tending to show the
existence" of discrimination to establish entitlement to discovery in selective
prosecution claims. We find the Armstrong Courts reasoning persuasive. The
charges against the defendant stemmed from his behavior while in the Nashua Police
Station. That he was there to legitimately report an alleged civil rights violation is
neither a justification for his subsequent behavior, nor a viable defense to its
criminality.

With respect to the defendants request for an in camera review of the
personnel records of Officer Girouard and Sergeant Provencher, the trial court correctly
determined that the defendant bore the burden to establish that there was a realistic and
substantial likelihood that evidence helpful to his defense would be obtained from the
officers personnel records. SeeState v. Puzzanghera, 140 N.H. 105,
106-08 (1995). A review of the trial record fails to indicate, given the limited nature of
the charges against the defendant, that evidence helpful to the defendant would be found
in the personnel files.

Therefore, we find that the decision to deny the defendants discovery requests
was neither untenable nor unreasonable.

Finally, the defendant contends that the States failure to turn over potentially
exculpatory evidence violated his right to the due process of law. Prior to trial, the
defendant requested from the State all witness statements and all potentially exculpatory
materials. After an in camera review of the Nashua Police Departments
Internal Affairs file, the trial court ordered production of the witness statements. At
trial, the defendant learned of the existence of a memorandum, drafted by Sergeant
Provencher to the departments internal affairs division, describing the incident
with the defendant. The defendant also learned that Captain Hefferan had drafted a
complaint form based upon a telephone conversation with the defendant the day after his
arrest. The State admits that these documents were not provided to the trial court for in
camera review. The defendant argues that the States failure to disclose this
evidence violated his due process rights by depriving him of a fair trial and therefore
should result in the reversal of both convictions.

The State concedes that its failure to disclose the evidence in question was improper
and argues that the appropriate remedy is to remand the matter to the trial court for
further review. We agree. The substance of the undisclosed evidence remains unclear. As
such, we remand this matter to the trial court for the limited purpose of an in camera
review of the undisclosed documents. If the trial court discovers evidence that the
defendant could have used at trial which would have affected the verdict, it should order
a new trial. See, e.g., State v. Gagne, 136 N.H. 101, 106 (1992).